Khan Awais v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 43/2019

[2023] HKCFI 252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 43 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

The applicant

3.The applicant is a national of Pakistan.  He entered Hong Kong illegally on 7 February 2016 and was arrested by the police on 13 February 2016.  On 15 February 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his uncle Razawal Khan (“RK”).

4.The applicant’s claimed fear of harm from RK originated from a land dispute occurred in 2013.  After the applicant inherited the family land, he asked RK to return 2 kanals of the land.  RK refused and the applicant believed that the reason of his refusal was because the applicant rejected the proposal to marry his daughter.  One day in 2015, the applicant brought up this topic again and RK was furious.  He threatened and attacked the applicant. Thereafter, the applicant was intercepted by four unknown men who threatened to killed the applicant if he continued to have the dispute with RK.  Later, the applicant escaped to Karachi.  When he returned home in November 2015, he was again assaulted by RK.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 31 January 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]; (ii) state protection would be available to him [12]-[18]; and (iii) internal relocation was a viable alternative [19]-[22].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 12 September 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [6];[28].

8.Having considered the evidence, the Board made the following findings. First, on the applicant’s own evidence, he had no fear about returning on account of his political opinion or activities.  The only fear of harm was from RK [39].  Secondly, the applicant’s accounts were largely consistent with the country of origin information about land disputes in Pakistan [40].  Thirdly, the applicant conceded that, if the dispute with RK remained unsolved, he was willing to give up the disputed land in order to reach a peaceful solution [41].  Fourthly, it would not be unduly harsh for the applicant to relocate to other areas [42]-[43].

9.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 7 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant asked the Court to review the evidence of the supporting document and allow him to continue to stay in Hong Kong because he is still under threat from his uncle.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.There is no valid reason to challenge the Board’s Decision.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

18.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 6^th day of February 2023

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1